P. v. Ingram

Filed 6/18/07 P. v. Ingram CA4/3

Opinion received for posting 6/20/07

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Daniel B. McNerney, Judge. Affirmed.

Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *

Deves Ingram was convicted by a jury of first degree burglary, a felony (Pen. Code,  459). He filed a notice of appeal with this court, and we appointed counsel to represent Ingram on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against his client, but advised the court no issues were found to argue on appellants behalf. Appellant was given 30 days to file written argument in his own behalf. That period has passed, and we have received no communication from him.

We have examined the record ourselves to see if we can find any arguable issue and cannot. We have reviewed the transcript, the trial exhibits, the arguments considered and rejected by counsel, appellants complaints about his trial, and applied our own imagination and can find no arguable errors in this record.

Ingram contended in his request for a certificate of probable cause that his attorney was ineffective because multiple motions pertaining to discovery, chain of evidence were never filed, but this was an identification case, and nothing was alleged to have been taken. It is hard to imagine what discovery or chain of evidence questions could have come up. We can find no indication counsel was ineffective. In fact, it seems to us that counsel had little to work with in terms of a viable defense, but offered proficient representation, nonetheless.

Nor can we find support for Ingrams other contention, that the evidence against him was insufficient. We can certainly understand his chagrin: The case hinged upon the identification by the neighbor, and if that could somehow be removed from the equation, his conviction could not stand. But there was no way to make it go away.

Ingram was identified by a neighbor as one of two men she saw enter the mobile home of Ernest Bohl at 1:30 in the afternoon, while Mr. Bohl was away. Mr. Bohl said he had never met either of the men arrested that day and had given no one permission to enter his trailer. His belongings had been moved around considerably when he returned to the trailer.

The neighbor called police, who confronted Ingram outside Bohls trailer. The second man, codefendant Richard Thompson was located about 70 feet away, talking on a cell phone.

Ingram told the police he was at the trailer park to help a friend (ostensibly, Thompson) find a place to rent or buy. At another time he said he was there looking for a job. Deves himself testified that he had never gone into any of the trailers, contrary to what the neighbor had said. His testimony was that Thompson went toward a trailer and Ingram lost sight of him, so he just stood around killing time until the police arrived. He was impeached with a 1998 felony conviction for receiving stolen property in Alabama.

The case therefore came down to an eyewitness identification in the middle of the day, Ingrams explanation that he was at the scene of the burglary waiting for a friend (and his somewhat contradictory statement he was looking for a job) and the undermining of his credibility with a prior felony conviction.

The weight of the identification was for the jury to determine. Having not seen or heard the witness, we are in no position to quarrel with her recognition of Ingram as one of the men she saw go into the trailer. Defense counsel cross-examined her, establishing some possible reasons to question her identification, but none of them was compelling and none seems to have impressed the jury.

As we have pointed out, defendants testimony was unable to explain away his presence, the neighbors identification of him as one of the men who entered the residence, or his own not entirely consistent explanations of those things. It came down to a judgment of his credibility, and in that regard, his prior felony conviction was doubtless highly damaging.

For that reason, we have examined the prior conviction and the courts decision to allow its introduction and find no infirmity in either. The conviction was eight years old, but that is well within the range of priors whose introduction California case law has upheld. Its admission was a matter correctly left to the discretion of the trial court, and we find nothing to indicate an abuse of that discretion.

We are unable to find any infirmity in the judgment against appellant, and it is therefore affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

ARONSON, J.

IKOLA, J.

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